The opinion
State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 36
Bryan Scurry, &c., et al.,
Respondents,
v.
New York City Housing Authority,
Appellant
(And Third-Party Actions.)
----------------
No. 37
Estate of Tayshana Murphy, &c.,
Appellant,
v.
New York City Housing Authority,
Respondent,
et al.,
Defendants.
Case No.36:
John F. Watkins, for appellant.
Brian J. Shoot, for respondents.
Case No. 37:
Steven Pecoraro, for appellant.
Patrick J. Lawless, for respondent.
Defense Association of New York, Inc. et al., amici curiae.
WILSON, Chief Judge:
Bridget Crushshon and Tayshana Murphy lived in two different public housing
complexes owned and operated by the New York City Housing Authority (NYCHA).
Their assailants, who were intruders onto the premises, entered their buildings through
-1-
-2- Nos. 36, 37
exterior doors that, for the purpose of these appeals,1 we assume did not have functioning
locks. An intruder murdered Ms. Crushshon in the hallway of her building by immolating
her; an intruder murdered Ms. Murphy by shooting her at point-blank range as she begged
for her life. In both cases, plaintiffs sued NYCHA for negligence. In both cases, NYCHA
admits that it had a duty to provide a locking exterior door. In both cases, NYCHA claimed
entitlement to summary judgment on the theory that, because the assailants did not commit
crimes of opportunity but instead had “targeted” their victims, NYCHA’s negligence was
not a proximate cause of the deaths.
We reiterate that general negligence principles apply to cases in which a tenant is
injured by a third party’s criminal attack, including the principle that “[a] defendant’s
negligence qualifies as a proximate cause where it is a substantial cause of the events which
produced the injury” (Turturro v City of New York, 29 NY3d 469, 483 [2016] [internal
quotation marks omitted]). As we explained in Burgos v Aqueduct Realty Corp., there is
“no need … to create a special rule for premises security cases, since the burden regularly
placed on plaintiffs to establish proximate cause in negligence cases strikes the desired
balance” between “a tenant’s ability to recover for an injury caused by the landlord’s
negligence against a landlord’s ability to avoid liability when its conduct did not cause any
injury” (92 NY2d 544, 551 [1998]). We hold that though the sophisticated nature of an
1
In Murphy, Supreme Court observed that the door was not functioning properly at the
time of the occurrence. In Scurry, Supreme Court held that there was an issue of fact as to
“whether NYCHA had fulfilled [its] duty to provide a safe environment at the Cypress
Hills Houses”; at oral argument, counsel for NYCHA conceded the existence of an issue
of fact as to the lock’s operability.
-2-
-3- Nos. 36, 37
attack may in some cases be relevant to the proximate cause analysis, the fact that an attack
was “targeted” does not sever the causal chain between a landlord’s negligence and a
plaintiff’s injuries as a matter of law. We thus affirm the Second Department’s denial of
summary judgment to NYCHA in Scurry and reverse the First Department’s grant of
summary judgment to NYCHA in Murphy.
I.
Scurry v NYCHA
Ms. Crushshon was killed by Walter Boney, a former intimate partner who was
violently abusive toward Ms. Crushshon during and after their relationship, when he gained
access to her apartment building in NYCHA’s Cypress Hills complex. Mr. Boney hid
around a corner in Ms. Crushshon’s hallway and attacked her as she left her apartment for
work, then doused her in gasoline and lit her on fire. Ms. Crushshon died on the scene and
Mr. Boney died at the hospital. Ms. Crushshon’s son, Bryan, who had heard the
commotion in the hallway and attempted to intervene, sustained severe burn injuries and
remained in the hospital for months.
Ms. Crushshon’s sons sued NYCHA, alleging that it had breached its duty to
provide minimal security precautions to guard against the criminal acts of third persons in
that it failed to provide exterior doors with properly functioning and adequate locks.
NYCHA moved for summary judgment, arguing that the premeditated nature of Mr.
Boney’s attack severed any causal connection between the broken lock and the attack.
Supreme Court denied NYCHA’s motion, finding that material issues of fact remained.
-3-
-4- Nos. 36, 37
The Appellate Division, Second Department, affirmed (193 AD3d 1 [2021]). NYCHA
appeals by leave granted by the Appellate Division on a certified question. We now affirm.
Estate of Murphy v NYCHA
Eighteen-year-old Tayshana Murphy was fatally shot in the stairwell of her
apartment building in NYCHA’s Grant Houses complex. Her friends had been engaged in
an escalating dispute with residents of a neighboring NYCHA complex in the days leading
up to her murder. Ms. Murphy and her friends were outside the Grant Houses late one
night when they saw Robert Cartagena and Tyshawn Brockington, two residents of a
nearby housing complex involved in the earlier altercations, approaching the building. Ms.
Murphy, along with her friends, ran into the building, pulling shut the exit-only side door,
which was supposed to be self-locking. Surveillance video shows that one of the group
then stuck his head out of that door to keep watch; when he retreated into the building, the
video shows the door bouncing in its jamb, failing to close. About a minute later, Mr.
Cartagena and Mr. Brockington slowly approached the building and tried to enter via the
main entrance door. They were unable to open it. They then tried the side door, which
readily opened. They encountered Ms. Murphy in the stairwell, where her friends heard
her plead with them that she had nothing to do with the dispute before they then heard
gunshots. Ms. Murphy was shot three times.
Ms. Murphy’s mother, as administrator of Ms. Murphy’s estate, sued on behalf of
the estate, alleging that NYCHA was negligent in failing to provide properly functioning
locks, failing to properly monitor surveillance equipment, and failing to provide adequate
-4-
-5- Nos. 36, 37
security. NYCHA moved for summary judgment, submitting evidence from Mr.
Cartagena’s criminal trial, which showed that Ms. Murphy was killed in an act of
vengeance for the actions of other Grant residents and that she was targeted for that
purpose. NYCHA also submitted an affidavit by a security management consultant, who
averred that NYCHA’s maintenance staff performed routine inspections of all doors to
make sure that they were locking properly and that caretaker checklists for the days before
and after the murder indicated that the door was working properly. The consultant opined
that no security device would have deterred the attackers.
In opposition, the estate administrator submitted surveillance footage of the
building, which showed the attackers entering through a visibly malfunctioning door, as
well as an affidavit in which Ms. Murphy’s mother stated that the side door was supposed
to be an automatically locking, exit-only door, but that it had never locked the entire time
she had lived there. She also stated that she regularly complained about the side door, both
by telephone and in person at the management office. The administrator also submitted an
affidavit from a locksmith who examined the footage, NYCHA work orders, photos, and
the door itself. The locksmith opined that the electromagnetic door lock was not working
as intended and stated that the video evidence flatly contradicted NYCHA’s caretaker
checklists.
Supreme Court granted NYCHA’s motion. Although it concluded that “clearly[,]
the door was not functioning properly” at the time of the occurrence, it reasoned that
because the attack on Ms. Murphy was targeted, it was an “unforeseeable superseding
intervening cause” as a matter of law. The Appellate Division, First Department, affirmed,
-5-
-6- Nos. 36, 37
holding that because Ms. Murphy’s “killers were intent on gaining access to the building
… it does not take a leap of the imagination to surmise that [they] would have gained
access” to the building even if the door had been locked, which “negates the unlocked door
as a proximate cause of the harm that befell Murphy, and makes her assailants’ murderous
intent the only proximate cause” (193 AD3d 503, 509 [1st Dept 2021]). We granted the
Estate’s motion for leave to appeal, and now reverse.
II.
Landlords have a common-law duty to take minimal precautions to protect tenants
from foreseeable harm, including a third party’s foreseeable criminal conduct (see Burgos,
92 NY2d at 548). That includes what we have deemed “the most rudimentary security—
e.g., locks for the entrances” of apartment buildings (Jacqueline S. v City of New York, 81
NY2d 288, 295 [1993]). NYCHA admits it bears that duty.
A failure to supply minimal security breaches that duty. In Murphy, Supreme Court
noted that the door’s lock was not functioning. In Scurry, Supreme Court held, and
NYCHA concedes for the purpose of this appeal, that there was an issue of fact as to
“whether NYCHA had fulfilled [its] duty to provide a safe environment at the Cypress
Hills Houses.” Thus, in both cases, plaintiffs at a minimum demonstrated questions of fact
as to breach.
The primary issue on these appeals is whether NYCHA was entitled to summary
judgment on the issue of proximate cause. “A defendant’s negligence qualifies as a
proximate cause where it is a substantial cause of the events which produced the injury”
(Turturro, 28 NY3d at 483 [internal citations and quotation marks omitted]). “When faced
-6-
-7- Nos. 36, 37
with a motion for summary judgment on proximate cause grounds, a plaintiff need not
prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at
trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable
issue of fact regarding whether defendant’s conduct proximately caused plaintiff’s
injuries” (Burgos, 92 NY2d at 550).
In Burgos, we held that proximate cause in a premises security case may be
“established only if the assailant gained access to the premises through a negligently
maintained entrance” (id.). Indeed, the risk that an intruder will enter the building and
harm residents is the very risk that renders a landlord negligent for failing to provide locked
exterior doors. Where minimal security measures, such as a locked door or lobby
attendant, “would have had the effect of deterring” an attacker, a jury can infer that the
absence of such measures proximately caused an attack (Nallan v Helmsley-Spear, Inc., 50
NY2d 507, 521 [1980]). This is so regardless of “whether the crime in question was one
of random violence or was a deliberate, planned ‘assassination’ attempt such as apparently
occurred in [Nallan]” (id.). Thus, where the defendant fails to demonstrate on its motion
for summary judgment that, as a matter of law, minimal security measures would not have
deterred the intruder, the defendant is not entitled to summary judgment on proximate
cause (id.).
III.
NYCHA argues that as a matter of law, its negligence could not have proximately
caused the death of Ms. Crushshon or Ms. Murphy because they were the victims of
targeted attacks, and landlords do not have a “duty to outwit or outthink those who are
-7-
-8- Nos. 36, 37
determined to overcome” the “minimal steps a landowner is required to take to secure
premises” (Estate of Murphy, 193 AD3d 503, 509 [1st Dept 2021]). In other words,
NYCHA contends that where a landlord offers evidence that an attack is “targeted,” that
landlord has demonstrated that the assailant would have gained access to the building even
if the door had been properly secured; to successfully oppose a motion for summary
judgment, the plaintiff must rebut that demonstration by showing that a locked door would
have in fact deterred the assailant. In the Appellate Division’s view, because Mr. Cartagena
and Mr. Brockington “were intent on gaining access to the building” and “[i]n reality . . .
[it] is hardly ever the case” that “minimal precautions would have actually prevented a
determined assailant from gaining access . . . it does not take a leap of the imagination to
surmise” that they would have killed Ms. Murphy even had the door been locked. Thus,
according to the Appellate Division, proximate cause was “negate[d]” as a matter of law
(id. at 509).
That reasoning mistakes a patently factual determination—whether a locked door
would have prevented an attack—for a legal one—i.e , that an attacker’s intent is a
superseding cause as a matter of law. It is well settled that “[g]iven the unique nature of
the inquiry in each case, proximate cause is generally an issue for the trier of fact, so long
as the court has been satisfied that a prima facie case has been established and the evidence
could support various reasonable inferences” (Turturro, 28 NY3d at 483 [internal quotation
marks omitted]; see e.g., Hain, 28 NY3d 524; Derdiarian. 51 NY2d at 315). “[I]n order
to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding
whether defendant’s conduct proximately caused plaintiff’s injuries” (Burgos, 92 NY2d at
-8-
-9- Nos. 36, 37
550). Plaintiffs in both Scurry and Murphy raised triable issues of fact regarding proximate
cause; in both cases, proximate cause should be assessed by the finder of fact.
IV.
Though NYCHA frames these fact questions as issues of superseding cause as a
matter of law, we have repeatedly emphasized that just “[a]s with determinations regarding
proximate cause generally, ‘[b]ecause questions concerning what is foreseeable and what
is normal may be the subject of varying inferences,’ whether an intervening act is
foreseeable or extraordinary under the circumstances ‘generally [is] for the fact finder to
resolve” (Turturro, 28 NY3d at 484, quoting Derdiarian, 51 NY2d at 315). “[W]here the
risk of harm created by a defendant’s conduct corresponds to that which actually results[,]
. . . [t]he determination of proximate cause is best left for the factfinder” (Hain, 28 NY3d
at 530). Only in “rare cases” can the issue be decided as a matter of law (id.).
There “may be more than one proximate cause of an injury,” and it is “well settled
… that where the acts of a third person intervene between the defendant’s conduct and the
plaintiff’s injury, the causal connection is not automatically severed” (Turturro, 28 NY3d
at 483-484 [internal quotation marks omitted]). Instead, just as with general determinations
of proximate cause, when the issue of proximate cause involves an intervening act,
“liability turns on whether the intervening act is a normal or foreseeable consequence of
the situation created by the defendant’s negligence” (Hain v Jamison, 28 NY3d 524, 529
[2016]). It is “[o]nly where ‘the intervening act is extraordinary under the circumstances,
not foreseeable in the normal course of events, or independent of or far removed from the
defendant’s conduct,’ [that it] may … possibly ‘break[ ] the causal nexus’ ” (id.). But “[a]n
-9-
- 10 - Nos. 36, 37
intervening act may not serve as a superseding cause, and relieve an actor of responsibility,
where the risk of the intervening act occurring is the very same risk which renders the actor
negligent” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316 [1980]).
Here, the risk created by the nonfunctioning door locks—that intruders would gain
access to the building and harm residents—is exactly the “risk that came to fruition” (Hain,
28 NY3d at 533). It was not the trial court’s role, on summary judgment, to assess the fact-
bound question of whether the intruders in Scurry or Murphy would have persevered in
their attacks had the doors been securely locked. This is not to say that the sophistication
and planning of an attack is irrelevant to the factfinder’s determination of proximate cause,
or even that it could never rise to such a degree that it would sever the proximate causal
link as a matter of law (cf. Buckeridge v Broadie, 5 AD3d 298, 299 [1st Dept 2004] [robbers
dressed in work clothes, orange vests, and helmets, and carrying test tubes and folders,
gained entry to defendant’s house while posing as environmental protection workers
investigating a water main break in the area]). But neither Scurry nor Murphy approaches
that level.
In Scurry, the plaintiffs demonstrated that Mr. Boney confronted Ms. Crushshon in
the hallway, restrained her, and doused her with a flammable liquid, then set himself,
Crushshon, Bryan, and the hallway on fire. Though the manner in which the attack was
committed is shocking, we cannot say that an attack by a non-tenant domestic abuser is so
“independent of or far removed from the defendant’s conduct” in failing to provide locking
- 10 -
- 11 - Nos. 36, 37
doors that it “breaks the causal nexus” as a matter of law (Mazella v Beals, 27 NY3d 694,
706 [2016] [internal quotations omitted]).2
In Murphy, NYCHA’s claimed entitlement to summary judgment is even weaker.
Surveillance video shows Mr. Cartagena and Mr. Brockington attempt to enter through a
locked door. Upon finding it locked, they did not break through it or attempt to gain access
“by following another person in or forcing such a person to let them in” (193 AD at 509)—
instead, they tried the side door, which was unlocked. The evidence suggests that Mr.
Cartagena and Mr. Brockington would have attacked any of the group of six that they had
set their sights on. Even if the attackers had been determined to enter despite a locked door,
a jury could find that the added time it would have taken them to gain entry would have
allowed Ms. Murphy to escape to the safety of her own or a friend’s apartment. This was
hardly the type of sophisticated, meticulously planned and executed attack that might
possibly sever the causal chain as a matter of law; instead, it was the heartbreaking result
of a volatile situation that may or may not have cooled off with time. Thus, in Murphy, the
2
NYCHA’s suggestion that to hold a landlord liable, a tenant must prove that an attacker
would not have “picked another spot to lie in wait, and just as easily have carried out his
murderous act” is not supported by our precedent or by common sense. Victims of targeted
attacks should not be afforded less protection by their landlords simply because they are
targeted. Such a rule would have a particularly cruel impact on victims of domestic
violence. Domestic abusers like Mr. Boney are frequently extremely determined. Their
victims should not, simply due to their abusers’ determination, be prevented from
recovering for their landlords’ “failure to supply even the most rudimentary security—e.g.,
locks for the entrances” of their homes (Jacqueline S, 81 NY2d at 295). The fact that
women are frequently the victims of violent acts carried out by obsessive abusers should
not deprive them of a minimum measure of safety in their own homes and, sadly, can hardly
be said to be unforeseeable.
- 11 -
- 12 - Nos. 36, 37
Appellate Division improperly drew conclusions as a matter of law about the level of
determination and ability that Ms. Murphy’s assailants had to enter the building and cause
her harm. The mental state of an assailant and his ability to circumvent security measures
at a given property and time are not susceptible to determinations as a matter of law on
summary judgment. A factfinder at trial could have found that a functioning lock on the
side door would have deterred Mr. Cartagena and Mr. Brockington from pursuing the group
into the building. Hypotheticals about what would have occurred if the side door had been
locked—that “Cartagena and Brockington would have gained access to the building by
following another person in or forcing such a person to let them in” (193 AD3d at 509)—
are quintessentially questions of fact to be resolved at trial.
In sum, what might have happened had the doors in both buildings worked properly
is a question of fact. We cannot say that, as a matter of law, it is “extraordinary under the
circumstances [or] not foreseeable in the normal course of events” that an abusive former
intimate partner or a violent neighboring gang would enter through a door negligently
maintained by a landlord and injure a resident (Mazella, 27 NY3d at 706). NYCHA thus
did not meet its burden as a movant for summary judgment to demonstrate the absence of
material issues of fact as to proximate cause (see, e.g., Vega v Restani Const. Corp., 18
NY3d 499, 503 [2012]).
V.
Finally, in Murphy, NYCHA contends that it was entitled to summary judgment
because it demonstrated, as a matter of law, that it did not have notice of the broken lock
on the door in question. Although the Appellate Division did not address that issue,
- 12 -
- 13 - Nos. 36, 37
Supreme Court concluded that plaintiff had not sufficiently rebutted NYCHA’s prima facie
showing that it had no notice the door was defective.
However, a plaintiff in a premises security suit need not prove that a landlord had
notice to defeat summary judgment. On a motion for summary judgment, facts must be
viewed in the light most favorable to the non-moving party, and summary judgment must
be denied where the moving party fails to demonstrate the absence of any material issues
of fact (see, e.g., Vega at 503). Of course, notice is relevant to the factual question of
whether NYCHA breached its duty to provide minimal security measures.
Here, NYCHA’s own maintenance records raise questions of fact regarding whether
it had notice of the broken door lock. Though NYCHA’s records indicate that the door
worked properly on the mornings before and after the attack, other inconsistencies and
omissions in NYCHA’s records render them inadequate to demonstrate lack of notice as a
matter of law. For instance, as noted above, Supreme Court observed that the lock clearly
was not working during the early hours of September 11, 2011. NYCHA’s records indicate
it was working the next day, but there is no record of a repair having taken place between
the attack and the record indicating the lock was in working condition. In addition, there
are questions of fact as to whether the employees identified on an earlier work order
actually could have made the repairs specified by the order. Far from demonstrating the
absence of triable fact questions as to breach, NYCHA’s submissions raise issues of fact
regarding the accuracy of its maintenance records.
In any event, Ms. Murphy’s estate raised triable issues of material fact with respect
to notice. Ms. Murphy’s mother submitted an affidavit stating that she made multiple
- 13 -
- 14 - Nos. 36, 37
complaints about the door not locking. The estate also submitted an affidavit from a
locksmith opining that the door had not been fixed since NYCHA was made aware of the
problem.
In both cases, the negligence claims should advance to a jury trial. Accordingly, the
order of the Appellate Division in Scurry should be affirmed, with costs, and the certified
question answered in the affirmative. The order of the Appellate Division in Murphy
should be reversed, with costs, and the motion by defendant New York City Housing
Authority for summary judgment dismissing the complaint as against it denied.
For No. 36: Order affirmed, with costs, and certified question answered in the
affirmative. Opinion by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro
and Troutman concur. Judge Halligan took no part.
For No. 37: Order reversed, with costs, and motion by defendant New York City Housing
Authority for summary judgment dismissing the complaint as against it denied. Opinion
by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.
Judge Halligan took no part.
Decided May 23, 2023
- 14 -